RE SHAFIQ JUNAID

CACV 76/2022

[2022] HKCA 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2022

(ON APPEAL FROM HCAL 1600/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge P Li (“the Judge”)  given on 10 February 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 6 June 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 March 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 30 November 2015, and surrendered himself to the police on 1 December 2015.  Thereafter, he lodged a non-refoulement claim on 3 December 2015.   

3.  The applicant’s claim was based on a fear of being harmed or killed by the family of his ex-wife, by reason of a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [2] to [9] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 27 March 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 14 January 2019, the Board dismissed the appeal on 6 June 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that there were discrepancies in the applicant’s evidence regarding the land dispute which undermined his overall credibility. 

The Judge’s decision

6.  The applicant filed a Form 86 on 12 June 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.  In the applicant’s supporting affirmation, he simply exhibited a copy of the Board’s Decision.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the CALL-1 Form:

“12.  The applicant filed the leave application on 12/6/2019. In his affirmation, he did not point out any specific error in the decision of the TCAB.

13.  He attended an oral hearing before this court on 15/11/2021. His uncle had come from the UK to Pakistan to settle the dispute. He wanted to stay in Hong Kong for the time being.

14.  It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.

15.  The applicant’s inconsistency was serious. His evidence was mere assertions without any documentary proof. This court agrees with the adjudicator that the applicant was not truthful. There was no real risk of harm if he returned to Pakistan. There is no error of law or procedure, the TCAB decision is rational.

Conclusion

16.  This court refuses leave for the intended judicial review.  It is not reasonably arguable.  There is no reasonable prospect of success.”

Grounds for appeal

9.  In the Notice of Appeal filed on 15 February 2022, the applicant merely stated:

“The High Court did not find any error of proceeding. I will show some error. I did not get justice.”

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 1 March 2022, in which he recounted the procedural background of his claim, and that “the High Court did not read my claim … there were many error”.

Discussion

12.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In his application in the court below, the applicant provided no particulars as to any respects in which the Director or the Board were unreasonable or unfair in reaching their Decisions, or how such Decisions could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.